Brown v State of Victoria and Ors (Ruling)
[2024] VCC 650
•10 May 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
CaseNo. CI-23-02488 and CI-23-02494
| ROHAN MICHAEL BROWN | Plaintiff |
| v | |
| STATE OF VICTORIA AND OTHERS (According to the attached schedule of parties) | Defendants |
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| JUDGE: | HER HONOUR JUDGE MANOVA |
| WHEREHELD: | Melbourne |
| DATEOFHEARING: | 1 May 2024 |
| DATEOFRULING: | 10 May 2024 |
| CASEMAYBECITED AS: | Brown v State of Victoria and Ors (Ruling) |
| MEDIUMNEUTRALCITATION: | [2024] VCC 650 |
RULING
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Subject:PRACTICE AND PROCEDURE – PROPER PARTIES TO PROCEEDING
Catchwords: Self-represented litigant – multiple proceedings on foot – multiple attempts to file appropriate pleadings – removal of parties
LegislationCited: County Court Civil Procedure Rules 2018, Orders 9, 13 and 36; Victoria Police Act 2013 (Vic), s72 to s75; Wrongs Act 1958 (Vic), s14B; Crown Proceedings Act 1958 (Vic), s22(2), s23(1)(b) and s25; Constitution Act 1975 (Vic), s51
Cases Cited:Northern Territory of Australia and Ors v Mengel and Ors (1995) 185 CLR 307; Bourgoin SA v Ministry of Agriculture, Fisheries and Food [1986] QB 716; A v State of New South Wales (2007) 230 CLR 500; McFadzean & Ors v Construction Forestry, Mining & Energy Union & Ors [2007] VSCA 289; Racz v Home Office [1994] 2 AC 45; Sneddon v State of New South Wales [2012] NSWCA 351
Ruling:Lisa Neville and Martin Pakula be removed as parties to proceedings CI-23-02488 and CI-23-03494
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| APPEARANCES: | Counsel | Solicitors |
ForthePlaintiff | The plaintiff appeared in person | - |
FortheDefendants | Mr N Petrie | Victorian Government Solicitor’s Office |
SCHEDULE OF PARTIES
CaseNo. CI-23-02488 and CI-23-02494
BETWEEN:
| ROHAN MICHAEL BROWN | Plaintiff |
| v | |
| LISA NEVILLE | First Defendant |
| and | |
| MARTIN PAKULA | Second Defendant |
| and | |
| STATE OF VICTORIA/PARLIAMENT OF VICTORIA | Third Defendant |
HER HONOUR:
Introduction
1On 1 May 2024, an application was made by the Victorian Government Solicitor’s Office (“VGSO”) for removal of two parties – the first defendant, Lisa Neville, and the second defendant, Martin Pakula – from two of the five proceedings filed by Mr Brown in this Court. The basis of the application was that the proceedings have been on foot for two years and that Mr Brown has been afforded multiple opportunities to properly plead his case and he has not done so. Further, that despite attempts by the VGSO to assist him to plead his case properly, it was still not clear what was alleged against them and on what basis they are said to be proper parties.
2I indicated to the parties that I would be making orders which remove Lisa Neville and Martin Pakula as parties. Mr Brown was opposed to that course and indicated he required reasons so he could consider his options. These are my reasons.
Brief history of proceedings
3On 5 May 2023, Mr Brown issued five Writs with five Statements of Claim in this Court. Mr Brown alleges that between 16 September 2016 and early 2022, various torts have been committed against him by the State of Victoria and by Lisa Neville and Martin Pakula.1
4Two of the five proceedings to which this Ruling relates nominate as parties:
(a)The State of Victoria / “Parliament of Victoria”;
(b)Lisa Neville (former Member of the Victorian Parliament). At the time of the alleged torts, Ms Neville was the Minister for Police and Emergency Services; and
CI-23-02485, CI-2302487, CI 23-02488, CI-23-02494 and CI-23-02495
(c)Martin Pakula (current Member of Parliament and former Attorney-General). During the period of the alleged torts, Mr Pakula was the Attorney-General and then the Minister for Tourism, Sport and Major Events.
5The VGSO appears for all nominated defendants and has brought a number of strike out applications by summons in respect of all five proceedings. These are as follows:
(a)On 16 August 2023, supported by written submissions dated 17 August 2023 and a list of relevant authorities;
(b)On 13 November 2023, supported by written submissions dated 21 November 2023 and a list of relevant authorities; and
(c)On 6 February 2024, supported by written submissions dated 26 February 2024 and a list of relevant authorities.
6The VGSO submissions contained detailed outlines of the elements of each of the torts or possible torts which might arise on the pleadings. In particular, false imprisonment, battery, malicious prosecution, and misfeasance in public office.
7The VGSO submissions also referred to the rules regarding addition, removal or substitution of a party as contained in Order 9 of the County Court Civil Procedure Rules 2018 (“the Rules”) and sections 72 to 75 of the Victoria Police Act 2013 (Vic) which relate to police tort claims where the person alleged to have committed the tort is a police officer.
8The strike out applications have been listed at various times and Mr Brown has been afforded a number of opportunities to replead his case.
9Mr Brown has filed the following five Amended Statements of Claim or Proposed Amended Statements of Claim in response to the attempts by the VGSO to have his pleadings struck out:
(a)On 5 May 2023;
(b)On 18 September 2023;
(c)On 10 October 2023;
(d)On 25 January 2024; and
(e)On 5 February 2024.
10As yet, he has been unable to replead his case in a manner which complies with the Rules:
(a)On 21 August 2023, the VGSO summonses were listed before her Honour Judge Tran.2 The transcript from that hearing contains a lengthy explanation by Judge Tran to Mr Brown about the purpose of pleadings, about the requirements of Order 13 of the Rules, what type of relief or remedy is usually included,3 what the pleadings must contain by reference to the various elements in the VGSO submissions,4 as well as an explanation of particulars;
(b)On 10 October 2023, Mr Brown filed proposed amended pleadings;
(c)On 24 November 2023, Mr Brown conceded that those pleadings were not in order and requested the Court make a referral to the Pro-Bono Scheme for assistance with drafting the pleadings.5 The Court made the referral but, unfortunately, it was not taken up by the Pro-Bono Scheme.6 The Court explained what was required for pleadings and again referred Mr Brown to the VGSO submissions which set out the elements which must be pleaded.7
Transcript of 21 August 2023 at page 24
Transcript of 21 August 2023 at page 25
Transcript of 21 August 2023 pages 24-26
Transcript of 24 November 2023 at page 8
See Orders dated 24 November 2024
Transcript of 24 November 2023 at pages 26-28
(d)On 2 February 2024, the Court was informed that Mr Brown had made arrangements for law students to assist him.8 Mr Brown was granted leave to amend his pleadings; and
(e)On 5 February 2024, Mr Brown again filed amended pleadings.
11On 1 May 2024, the defendant’s third summons for strike out was listed before me. It related to the amended pleadings dated 5 February 2024.
12Written submissions were provided by both parties and supplemented by oral submissions in Court.
13During the course of argument, Mr Brown conceded that all five of his amended pleadings again do not meet the Court’s rules for pleadings, and consented to all five of the pleadings in their entirety being struck out.9
14Orders were made by which Mr Brown has leave to provide a draft proposed pleading to the Court and to the VGSO by 5 June 2024.10 The matter had been listed for summons on the issue of costs and for further directions regarding the draft proposed pleading on 14 June 2024. Following a request from Mr Brown, that date has been brought forward to 17 May 2024.
Amended Statement of Claim dated 5 February 2024 (CI-23-02494)
15Mr Brown’s pleading provides that he makes claims for the following (purported) common law and equitable torts
(a)False imprisonment;
(b)Assault (trespass to the person);
(c)Harassment;
See Orders dated 2 February 2024
Transcript dated 1 May 2024 at page 105
Mr Brown requested one week only for the provision of a fresh pleading. I considered one week was too short a period and indicated Mr Brown could have as long as he wishes. The date of 5 June 2024 was provided by the Court at the request of Mr Brown who wanted as short a period as possible.
(d)Perjury and concealment of evidence;
(e)Deprivation of liberty;
(f)Human Rights abuses;
(g)Creation of false and misleading statements;
(h)Fraud in equity, perjury, forgery, account for profits, defamation of character and perverting the administrative course of justice.
16Mr Brown pleads that pursuant to s14B of the Wrongs Act 1958 (Vic)11 and the Crown Proceedings Act 1958 (Vic), the defendant is vicariously liable for torts committed by persons in the service of the Crown.
17Mr Brown’s pleading alleges that Lisa Neville, who was then Police Minister:
(a)set up the Victorian Fixated Threats Taskforce (VFTAC) –
“… to target people with legitimate grievances against the government ”
and that he was one such target –
“… personally identified by [her] office to … Detective Inspector Steven Cooper”;12
(b)on 16 July 2018, “dictated an ambush” of Mr Brown which was carried out by the by the VFTAC, resulting in his arrest without warrant and charges being laid against him (which charges are not particularised). The pleading includes reference to Ms Neville’s involvement having been –
“… withheld from the charges, brief, court proceedings, prosecution case and indictment, only to be revealed by … [Mr Brown’s] cross examination of [Detective] Steven Cooper 13
What was allegedly revealed is not particularised.
Section 14B does not provide for vicarious liability of the Crown but relates to occupier’s liability
Paragraph 4
Paragraph 7
Following his arrest, he –
“… was remanded in custody for 19 nights, lost his employment, home and thousands of dollars’ worth or property … .”14
The circumstances in which this loss allegedly occurred are also not particularised.
18Mr Brown has also pleaded that Martin Pakula:
(a)On 27 December 2018, engaged in various acts including an alleged assault upon Mr Brown’s friend, George Koromilas, which assault is not particularised; and
(b)On 1 December 2019, made a false statement claiming he was the victim of the actions of Mr Koromilas and Mr Brown. The alleged false statement is not properly particularised. It is alleged that the false statement was made with the intent to harm Mr Brown and that based on the false statement, an application for certain bail conditions was made by John Cain (OPP);15
19Mr Brown pleaded that Ms Neville and Mr Pakula together:
(a)In early 2022, dictated the commencement of a malicious prosecution against him, in which a conviction was not secured. There are no particulars regarding this alleged dictation of a malicious prosecution or the alleged failure to secure a conviction;16 and
(b)After the service of his Writ, made “further perjurious false statements and repeated the conduct of directing police to use their discretionary powers for their own purposes. … and provided … false evidence … to obtain [some] PSIOs [Personal Safety Intervention Orders] naming [Ms Neville] and [Mr Pakula] as protected people”.17
Paragraph 9
Paragraph 10
Paragraph 11
Paragraph 12
Amended Statement of Claim dated 5 February 2024 (CI-23-02488)
20This pleading provides that Mr Brown makes claims for the following (purported) common law and equitable torts:
(a)False imprisonment;
(b)Assault (trespass to the person)
(c)Harassment;
(d)Perjury and concealment of evidence;
(e)Deprivation of liberty;
(f)Human Rights abuses;
(g)Creation of false and misleading statements;
(h)Fraud in equity, perjury, forgery, account for profits, defamation of character and perverting the administrative course of justice.
21Mr Brown pleads that pursuant to s14B of the Wrongs Act 1958 (Vic)18 and the Crown Proceedings Act 1958 (Vic), the defendant is vicariously liable for torts committed by persons in the service of the Crown.
22Mr Brown pleads the same matters against Lisa Neville regarding the alleged incident on 16 July 2018 as appear in his other proceeding, and that he was subject to an ambush by the VFTAC dictated by Ms Neville, arrest without warrant (emphasis added) and detention for 19 days and loss of his property. He particularises the “direction” to VFTAC as having been given by Ms Neville by email.
23Mr Brown pleads the same matters against Mr Pakula as appear in his other proceeding. The pleading provides additional information that Mr Pakula’s involvement in Mr Brown’s case occurred in the context of a referral of Mr Brown’s
Section 14B does not provide for vicarious liability of the Crown but relates to occupier’s liability
“legitimate concerns” by the then Federal Attorney-General, Christian Porter, to Mr Pakula. These legitimate concerns are said to relate to perjury committed by a police prosecutor as provided in proceeding CI-23-02494.
24This pleading, like CI-23-02494, contains numerous unparticularised allegations against Ms Neville and Mr Pakula. It is not clear which torts they are alleged to have committed. Mr Brown’s written and oral submissions only add to the confusion.
Position of the parties
25By its written outline, the VGSO submits that the Court should make an order that Ms Neville and Mr Pakula cease to be parties as they are not proper parties for the following reasons:
(a)The pleadings do not expose any tort or claim which could conceivably be brought against them; and
(b)The pleadings were pleaded in a way which was more consistent with police torts claims and the proper defendant would be the State of Victoria.19
26In oral submissions, Counsel for the VGSO added that after five attempts at pleading his case against them, it remains unclear what torts they are alleged to have committed.20
27In his written submissions, Mr Brown said:
“It is alleged that the issue of the assault in 2018 has been exploited by … [Ms Neville and Mr Pakula, Detective Steven] Cooper, … and other members of the police force. They have distorted the facts and circumstances surrounding the incident to the detriment of … [Mr Brown]. Furthermore, they have withheld CCTV footage that would demonstrate the falsity of … [Mr Pakula’s] claims and exonerate the Plaintiff and his friend.”21
Submissions of the VGSO dated 26 February 2024 at page 24
Transcript of 1 May 2024 at page 119
Submissions of Mr Brown in response to VGSO submissions, dated 19 April 2024 at page 15, paragraph [114]
28Mr Brown made the following oral submissions during the hearing:
(a)He was intending to establish the tort of misfeasance in public office and malicious prosecution against Ms Neville and Mr Pakula;
(b)Ms Neville had “instituted proceedings” against him which were ultimately discontinued in 2022. During those criminal proceedings he was on bail;
(c)As a result of an allegedly false statement made by Mr Pakula during the criminal proceedings, a bail condition was imposed upon him banning him from contacting all members of parliament;22 and
(d)Mr Pakula caused him to go to Court to answer bail which is a false imprisonment.
29He indicated he wanted to sue them because “they committed perjury”23 and misfeasance in public office.
Tort of misfeasance in public office
30The elements of the tort of misfeasance in public office were referred to in the VGSO submissions.24 They include reference to the High Court in Northern Territory of Australia and Ors v Mengel and Ors25 as follows:
(a)An invalid or unauthorised act;
(b)Done maliciously or recklessly;
(c)By a public officer;
(d)In the purported discharge of public duties; and
(e)Causing damage to the plaintiff.
Transcript of 1 May 2024 at page 121
Ibid
VGSO submissions dated 26 February 2024 at page 9 and VGSO submissions dated 16 November
2023 at page 8
(1995) 185 CLR 307
31Accepting that a Minister is a public officer,26 there is nothing in the pleading and nothing in Mr Brown’s submissions which remotely suggests Mr Pakula committed the tort of misfeasance in public office. Mr Brown’s submissions contain the following:
(a)Mr Pakula’s alleged actions in assaulting Mr Koromilas constitute an interference with a witness – a tort aimed at obstructing the legal process; and
(b)By unlawfully imprisoning Mr Koromilas without warrant or charges following his testimony regarding the assaults on [Mr Brown], the defendants [Ms Neville and Mr Pakula] intended to dissuade Mr Koromilas and other potential witnesses from cooperating with legal authorities.27
32Mr Brown’s submissions also refer to being subjected to unwarranted surveillance and scrutiny by the FTAC established by Lisa Neville as Minister for Police. The tort identified in the submissions is “Abuse of Power/False Imprisonment” constituted by the FTAC targeting individuals (like him) with legitimate grievances against the government. There is no pleading which particularises the first element of “invalid or unauthorised act” by Lisa Neville.
33Taking the pleadings and Mr Brown’s submissions as a whole, it appears that what is alleged is that Mr Pakula and Ms Neville were directly or indirectly involved in falsely imprisoning him or his friend, Mr Koromilas. In the case of Ms Neville, directly by ordering the “ambush”, and in the case of Mr Pakula, indirectly by providing testimony – on unspecified dates and in unclear circumstances which resulted in the false imprisonment of Mr Koromilas. There is very little to suggest Ms Pakula and Ms Neville could have committed the tort of malicious prosecution.
Bourgoin SA v Ministry of Agriculture, Fisheries and Food [1986] QB 716
Mr Brown’s submissions dated 19 April 2024 at page 7
Elements of the tort of malicious prosecution
34The elements of the tort of malicious prosecution were referred to in the VGSO submissions28 and set out by the High Court in A v State of New South Wales29 as follows:
(a)That proceedings of a kind to which the tort applies (criminal proceedings) were commenced by the defendant;
(b)That the proceedings were terminated in the defendant’s favour;
(c)That the defendant, in initiating or maintaining proceedings, acted maliciously; and
(d)That the defendant acted without reasonable and probable cause.
35Mr Brown’s claim against Lisa Neville for malicious prosecution appears to be founded in her alleged actions of “orchestrating an ambush”.30 That “ambush” is a reference to an arrest of Mr Brown by members of VFTAC on 16 July 2018.
36It is the fact of Ms Neville having allegedly orchestrated the ambush which is said to have been concealed from various prosecution documents and which is said to have been revealed by Mr Brown’s cross examination of Steven Cooper. At paragraph 94 of his submissions,31 Mr Brown provides that the relevant tort is “malicious prosecution” because he was subjected to a malicious prosecution in the course of which, Ms Neville’s involvement in the ambush was concealed. At paragraphs 102-103, Mr Brown clarified that he was arrested without warrant that day and that various representations were made to a bail justice which were false.
VGSO submissions dated 26 February 2024 at page 9 and VGSO submissions dated 16 November
2023 at page 8
(2007) 230 CLR 500
Mr Brown’s submissions dated 19 April 2024 page 13, paragraphs 90-92
Mr Brown’s submissions dated 19 April 2024 at page 13
37Taking the most generous view of Mr Brown’s pleading, rather than malicious prosecution, any “tort” committed by Minister Neville might possibly be characterised a false imprisonment constituted by directing the “ambush”.
38In relation to Mr Pakula, Mr Brown is really alleging he was indirectly responsible for falsely imprisoning Mr Koromilas with intent to influence Mr Koromilas in his capacity of witness in Mr Brown’s case. The tort alleged to have been committed is not at all apparent.
Elements of the tort of false imprisonment
39The VGSO submissions outline the elements of the tort of false imprisonment as set out by the Court of Appeal in McFadzean & Ors v Construction Forestry, Mining & Energy Union & Ors32 as follows:
(a)the total deprivation of the plaintiff’s liberty;
(b)which was unlawful;
(c)that was done deliberately by the defendant; and
(d)was against the plaintiff’s will.33
Relevant legislative provisions
40Rule 9.06 of the Rules relevantly provides that:
“Addition, removal, substitution of party
At any stage of a proceeding the Court may order that––
(a) any person who is not a proper or necessary party, whether or not that person was one originally, cease to be a party;
… .”
41Section 22(2) of the Crown Proceedings Act 1958 (Vic) provides that:
[2007] VSCA 289
Ibid at paragraph [38]
“Every proceeding under this Part shall be taken by or against the Crown under the title of the ‘State of Victoria’ and shall be instituted and proceeded with in accordance with any procedure of the court specifically applicable thereto, or if no procedure is specifically applicable thereto, as nearly as possible in accordance with the procedure applicable to proceedings between subject and subject.”
42Section 23(1)(b) of the Crown Proceedings Act 1958 (Vic) provides that:
“Subject to this Part—
(a) …
(b) the Crown shall be liable for the torts of any servant or agent of the Crown or independent contractor employed by the Crown as nearly as possible in the same manner as a subject is liable for the torts of his servant or agent or of an independent contractor employed by him.”
43Section 25 of Crown Proceedings Act 1958 (Vic) provides that:
“Rights of Parties
In any proceeding under this Part in which the State of Victoria is a party the rights of parties shall as nearly as possible be the same and judgment may be given and costs awarded on either side and every judgment order or decree shall be subject to the same rights of re-hearing appeal and review, as in a proceeding between subject and subject.”
44Mr Brown’s pleading makes specific reference to the Crown Proceedings Act 1958 (Vic) and invokes the State’s vicarious liability for torts committed by its servants or agents.
45There is nothing in any of the iterations of the pleadings which even remotely provides a basis for the torts of misfeasance in public office and malicious prosecution against Ms Neville or Mr Pakula.
46These are the only torts for which they might be personally liable and for which the State might not be vicariously liable.34 These are the only torts which would make them proper parties.
47Mr Brown received written submissions from the VGSO outlining the elements of the various torts, and an explanation from Judge Tran. He has now had five
Northern Territory of Australia and Ors v Mengel and Ors (supra); Racz v Home Office [1994] 2 AC 45
attempts at particularising his claims against Ms Neville and Mr Pakula as defendants and has not done so. Taking all of the pleadings into account and Mr Brown’s written and oral submissions, I find he has not established they are proper parties.
48I bear in mind Mr Brown is self-represented; I bear in mind also that the Rules allow for amendment of pleadings “at any time by leave of the court”35 and also provide that “at any stage of a proceeding” the Court may order that a person be added as a party.36 If Mr Brown is at some later stage, able to provide a proper basis for inclusion of Ms Neville and Mr Pakula and a proper pleading and particularisation of the alleged torts of misfeasance in public office and or malicious prosecution, the Rules enable them to be added as a party on application by Mr Brown.
49Underpinning all of Mr Brown’s pleadings is the complaint that he was arrested without warrant, at the behest of Lisa Neville, then falsely imprisoned and then maliciously prosecuted by officer Samson. He has not pleaded the elements of false imprisonment as they allegedly apply to Ms Neville; however, he has invoked the vicarious liability of the State for torts committed by its servants or agents..
50If Mr Brown is able to establish those elements in his pleading, the State of Victoria can be the proper party and he would not be prejudiced by an order removing Ms Neville as a party to his proceedings.
51This is so because Ministers are “servants or agents of the Crown” and pursuant to s22(2) and s23(1)(b) of the Crown Proceedings Act 1958 (Vic), the State of Victoria is liable for any torts committed by Ministers.37
Rule 36.04 of the Rules
Rule 9.06 of the Rules
Pursuant to s51 of the Constitution Act 1975 (Vic), a Minister of the Crown must be a member of the Legislative Council or Legislative Assembly (that is, a Member of Parliament); see also Sneddon v State of New South Wales [2012] NSWCA 351 at paragraph [64] – a Member of Parliament (“MP”) is a servant or agent of the Crown and the State is liable for torts committed by the MP
52Mr Brown would be able to pursue the State for any “false imprisonment’ he alleges he was subjected to as a result of the so-called “ambush” directed by Ms Neville when she was Minister for Police. The State is the proper party in such a proceeding.
53Mr Brown has not established any basis on which it could be claimed that the former Attorney-General, Martin Pakula, committed any torts against him for which he is personally liable. Therefore, he is not a proper party to these proceedings.
54Mr Brown has not established any basis on which it could be claimed that Lisa Neville, Minister for Police, committed any torts against him for which she is personally liable.
55I accept the submissions made by the VGSO and order that Lisa Neville and Martin Pakula be removed as parties to proceedings CI-23-02488 and CI-23-03494.
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